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low  to  Examine  a  Title 
to  Real  Estate 


Modern  American  Law  Lecture 


Blackstone  Institute,  Chicago 


HOW  TO  EXAMINE  A  TITLE 
TO  REAL  ESTATE 


BY 

ARTHUR  W.  BLAKEMORE,  A.B.,  LL.B. 

OF  THE  BOSTON  BAR 


One  of  a  Series  of  Lectures  Especially  Prepared 
for  the  Blackstone  Institute 


Copyright,  1916,  by  Blackstone  Institute 


T 

3  5&3#  A 

ARTHUR  W.  BLAKEMORE 

Mr.  Blakemore  is  a  practicing  attorney  of  wide 
experience.  Since  1900  he  has  been  engaged  in 
active  practice. 

He  is  a  graduate  of  Harvard  College  and  Har- 
vard Law  School.  Mr.  Blakemore  also  studied 
for  a  time  at  the  Universities  of  Berlin  and  Hei- 
delberg, Germany. 

After  he  was  admitted  to  the  bar,  he  devoted 
his  attention  not  only  to  practice  but  also  to  the 
preparation  of  legal  articles  on  many  phases  of 
the  law  and  has  become  known  as  an  authority. 

Mr.  Blakemore  is  the  author  of  ' '  Real  Property, ' ' 
in  Modern  American  Law.  In  addition  he  has  writ- 
ten several  articles  in  the  Cyclopedia  of  Law  and 
Procedure.  He  is  the  author  of  "Massachusetts 
Court  Rules  Annotated,"  "Blakemore  and  Ban- 
croft on  Inheritance  Taxes,"  "Gould  and  Blake- 
more on  Bankruptcy,"  and  has  prepared  articles 
for  several  other  publications. 

Along  with  his  other  activities  Mr.  Blakemore 
has  found  time  to  take  an  active  part  in  civic 
enterprises.  For  a  period  of  five  years  he  has 
served  as  Alderman  of  the  City  of  Newton,  Massa- 
chusetts, where  he  resides. 


M. 


HOW  TO  EXAMINE  A  TITLE  TO 
EEAL  ESTATE 

By 

AKTHUR  W.  BLAKEMORE,  A.B.,LL.B. 

INTEODUCTION 

It  is  impossible  in  this  monograph  to  attempt  even 
to  hint  at  the  many  rules  of  substantive  law  that 
govern  and  affect  the  title  to  real  estate.  We  will 
assume,  therefore,  that  the  title  examiner  has  a  fair 
knowledge  of  these  rules  of  law,  and  will  confine  our- 
selves to  other  questions  which  may  well  affect  the 
title.  It  should  be  remembered  in  the  first  place  that 
a  record  title  is  not  a  fetish  of  itself ;  that  there  may 
be  a  great  difference  between  good  title  to  real  estate 
and  record  title;  that  many  persons  hold  land  who 
have  not  a  good  record  title,  while  many  titles  good  on 
their  face  are  defective  for  one  cause  or  another  which 
does  not  and  cannot  appear  on  the  records.  For  this 
reason  all  good  conveyancers  attempt  as  far  as  pos- 
sible to  get  the  history  of  the  title,  as  their  report 
might  properly  be  biased  by  the  consideration  that  the 
property  had  been  for  a  long  period  of  years  in  the 
hands  of  well-known  people,  or  that  it  was  based  on 
a  land  development  which  had  been  engineered  by 
careful  and  conservative  owners.  For  the  same  rea- 
son it  is  always  wise  before  reporting  on  a  title  to 


6  MODERN  AMERICAN  LAW  LECTURE 

0 

personally  examine  the  land  in  question,  as  many 
things  may  thus  be  called  to  the  attention  of  the  title 
examiner  which  he  otherwise  might  overlook.  He 
might  notice,  for  example,  that  the  fences  were  down ; 
that  the  buildings  were  within  some  building  restric- 
tion, or  that  the  land  was  vacant  where  the  parties 
expected  to  find  buildings.  It  has  happened,  for  ex- 
ample, more  than  once  that  good  conveyancers  have 
passed  title  by  mistake  to  the  wrong  lot  of  land  or 
have  certified  a  title  to  be  good  which  was  impaired 
by  some  cause  which  was  readily  apparent  on  per- 
sonal examination  of  the  property.  As  we  shall  see 
in  the  course  of  this  treatise,  the  examiner  must  rely 
of  necessity  on  the  common  honesty  of  the  average 
dealer  in  real  estate.  He  knows  and  relies  upon  the 
fact  that  not  one  in  a  thousand  real  estate  transac- 
tions are  fraudulent.  This  reliance  on  common  hon- 
esty is  one  basis  of  a  record  title,  as  of  course  it  is 
comparatively  easy  to  put  on  record  deeds  that  are 
forged  or  to  misstate  important  facts  like  the  names 
of  heirs  interested  in  the  property  of  a  deceased 
person. 

The  title  examiner  is  employed  by  the  buyer  and 
paid  by  him  and  it  is  his  duty  to  protect  the  buyer 
at  all  hazards  against  anything  which  might  diminish 
the  value  of  the  property  bought.  In  case  of  mort- 
gages, the  mortgagee  who  loans  the  money  selects  the 
title  examiner,  whose  duty  then  of  course  is  to  pro- 
tect the  mortgaee,  but  the  examiner  is  paid  by  the 
mortgagor.  In  practice  it  is  quite  common  for  the 
parties  to  agree  beforehand  as  to  the  amount  of  com- 
pensation of  the  examiner  and  this  is  wise  to  avoid 


TITLE  TO  REAL  ESTATE  7 

controversy  as  to  his  bill.  It  is  quite  customary  for 
conveyancers  to  employ  clerks  experienced  in  such 
work  to  examine  the  indexes  and  make  the  abstracts 
and  fill  in  the  blanks  by  abstracting  the  various  deeds, 
but  when  this  is  done,  the  examiner  should  himself 
verify  the  work  of  his  assistants  by  an  examination 
of  the  original  record. 

DESCRIPTION  AND  PLAN  OF  PROPERTY 

The  first  thing  the  examiner  will  ask  for  on  being 
retained  to  examine  a  title  is  the  last  deed  of  the 
property.  Failing  this,  he  will  ascertain  the  exact 
location  and  get  the  name  of  the  present  owner.  When 
this  is  done,  he  should  carefully  write  out  the  descrip- 
tion of  the  land  to  be  conveyed,  which  land  is  com- 
monly called  the  " locus,"  as  in  case  the  land  has  been 
previously  subdivided,  or  is  part  of  a  larger  tract, 
such  a  description  is  absolutely  essential  to  have  with 
him  at  all  times.  He  should  also  as  soon  as  possible 
make  a  sketch  of  the  property,  showing  the  points  of 
the  compass,  the  boundaries  with  the  distances  on 
each  side,  and  all  the  adjoining  owners.  He  will  get 
this  possibly  from  some  atlas,  where  the  land  has  been 
cut  up  in  lots  for  some  time,  but  preferably  from  the 
last  available  plan  on  file  showing  the  description  of 
the  property.  It  is  as  a  general  rule  convenient  and 
sometimes  absolutely  necessary  to  make  tracings  or 
sketches  of  every  plan  on  record  which  is  referred  to 
in  any  of  the  deeds  or  other  papers  abstracted.  Such 
plans  often  explain  descriptions  in  old  deeds  which 
otherwise  would  be  unintelligible  and  form  a  very 
convenient  way  of  piecing  the  property  together  when 


8  MODERN  AMERICAN  LAW  LECTURE 

it  has  been  held  in  the  past  by  separate  and  distinct 
owners. 

Plans  of  all  kinds  are  of  great  assistance  to  the 
examiner  and  should  be  carefully  studied,  and  these 
are  especially  valuable  in  interpreting  old  deeds,  as 
formerly  plans  were  so  expensive  that  they  were  not 
usually  drawn  except  by  the  more  wealthy  people, 
and  they  are  therefore  of  great  help  when  found.  For 
want  of  better  information,  the  examiner  will  often 
find  atlases  of  various  dates  which  he  can  usually 
obtain  at  the  registries,  to  be  of  great  assistance,  as 
these  atlases  will  give  the  approximate  outline  of 
each  lot  of  land,  with  the  name  of  the  owner.  Such 
an  atlas,  for  example,  might  help  him  materially  in 
case  of  a  break  in  the  title  in  finding  the  name  of  the 
owner  at  a  given  date.  Town  maps  are  often  made 
and  are  on  file,  containing  much  valuable  informa- 
tion. Small  maps  are  often  bound  in  the  record 
books  themselves  with  the  deeds  and  should  be  care- 
fully studied.  It  is  common  to  bind  up  the  larger 
plans  in  books  and  compile  indexes  to  these  plans 
either  under  the  name  of  the  city  or  town  in  which 
the  land  is  situated,  under  the  name  of  the  owner, 
and  sometimes  under  the  name  of  the  street  or  of  the 
surveyor  who  drew  the  plan.  In  this  way  it  is  pos- 
sible to  find  plans  which  might  not  otherwise  come 
to  light.  Plans  of  railroad  locations  are  commonly 
filed  in  the  registry  of  deeds,  although  they  may  be 
filed  with  some  other  public  officer,  as  with  the  County 
Commissioner.  Tax  Collectors'  plans  are  usually  on 
file  with  the  local  assessors  and  should  be  consulted, 
especially  in  consideration  of  tax  deeds. 


TITLE  TO  KEAL  ESTATE  9 

RECORDS  AND  INDEXES 

Let  us  suppose  that  the  examiner  has  obtained  the 
last  deed  of  the  property  with  general  instructions  in 
regard  to  it.  He  will  first  ascertain  in  which  county 
his  land  lies  and  familiarize  himself  with  county  lines 
during  the  time  of  his  examination,  as  it  may  well  be 
that  the  lines  have  been  changed,  so  that  he  must  look 
for  part  of  his  title  in  one  county  and  for  part  in 
another  county.  He  will  go  to  the  Registry  of  Deeds 
of  the  county  where  the  land  lies  and  there  trace  back 
to  a  starting  point  for  his  title.  He  will  find  in  the 
registries  in  this  country  universally  that  the  deeds 
and  most  other  instruments  relating  to  titles  are 
copied  into  record  books  in  the  registries  of  deeds. 
In  some  registries  where  the  ink  in  the  original  rec- 
ords has  become  too  faint  for  ordinary  use,  or  where 
the  records  themselves  have  been  lost  or  destroyed, 
duplicate  records  attested  by  the  Register  may  be 
found  and  used. 

In  order  to  make  these  voluminous  records  avail- 
able, indexes  have  been  prepared  containing  the  names 
of  all  persons  named  in  these  instruments.  The 
grantees  in  all  deeds  and  other  instruments  are  placed 
in  grantees'  indexes  and  the  grantors  in  grantors' 
indexes.  It  is  a  common  practice  to  have  a  separate 
index  for  each  year  and  from  time  to  time  these 
indexes  are  consolidated  so  that  the  examiner  may  be 
able  to  find  in  one  index  all  the  conveyances  which 
John  Smith,  for  example,  has  made  or  has  received 
during  five,  ten  or  even  a  hundred  years.  Such  con- 
solidated indexes  of  course  greatly  facilitate  the  work 


10  MODERN  AMERICAN  LAW  LECTURE 

of  the  examiner  and  may  be  relied  upon  by  hum  The 
examiner  should  familiarize  himself  with  the  methods 
of  indexing  in  these  indexes  in  the  particular  registry 
in  which  he  is  to  work.  It  is  common,  for  example, 
to  index  partition  proceedings  in  both  grantor  and 
grantee  indexes.  The  names  of  corporations  are 
treated  in  various  ways.  In  some  places  the  first 
word  in  the  name,  whatever  it  may  be,  is  indexed, 
while  in  other  places  the  most  important  name  alone 
will  be  found.  For  example,  the  M.  B.  Smith  Com- 
pany might  be  indexed  under  M  or  under  Smith; 
or  in  some  places  all  corporations  are  indexed  under 
the  word  " Company,"  all  votes  under  the  word 
"Vote"  and  all  banks  under  the  word  "Bank." 

The  examiner  should  also  be  very  careful  in  regard 
to  the  middle  names,  as  the  early  indexes  pay  some- 
times little  attention  to  them  and  there  is  much  law 
to  the  effect  that  the  middle  name  of  a  person  is  not 
important,  so  that  the  title  may  really  be  charged 
with  a  conveyance  or  lien  against  John  J.  Smith 
when  the  conveyance  or  lien  stands  in  the  name  of 
John  Smith.  Middle  names  were  formerly  not  con- 
sidered important  and  it  was  quite  customary  for 
persons  to  change  their  middle  names  as  they  saw 
fit,  sometimes  using  them  and  sometimes  not  using 
them.  To-day  it  is  quite  common  for  women  when 
they  marry  to  drop  out  their  former  middle  name 
and  use  instead  their  former  surname,  and  the  ex- 
aminer must  be  on  the  watch  for  all  these  things. 

It  is  customary  to  keep  separate  indexes  of  attach- 
ments and  of  plans  and  in  some  places  of  tax  sales 
and  street  and  other  assessments  and  the  examine* 


TITLE  TO  REAL  ESTATE  11 

must  ascertain  just  what  system  is  used  in  the  par- 
ticular registry  which  he  is  using.  The  later  indexes 
in  most  places  now  require  the  insertion  of  the  name 
of  the  town  where  the  land  lies  and  this  of  course  is 
a  great  help.  Even  here,  however,  the  examiner  must 
familiarize  himself  with  the  history  of  the  locality 
and  ascertain  whether  or  not  the  city  or  town  where 
the  land  lies  was  formerly  a  part  of  another  city  or 
town  or  went  by  some  other  than  its  present  name. 

PROBATE  RECORDS 

When  a  land  owner  dies,  his  estate  is  settled  in  the 
Probate  Court  and  the  examiner  will  be  obliged  to  go 
to  the  probate  records  to  find  the  names  of  heirs  and 
other  data  necessary  for  his  examination.  Difficulties 
owing  to  the  death  of  the  previous  owners  are  fre- 
quently encountered  in  tracing  .a  title  back  to  the 
starting  point,  as  of  course  any  change  of  title  due 
to  death  will  not  appear  in  the  grantee  indexes  in 
the  Registry  of  Deeds.  The  fact  of  death  of  the  for- 
mer owner  should  appear  where  the  deeds  have  been 
carefully  drawn,  by  reference  in  the  deeds  of  the 
heirs  to  the  person  from  whom  they  obtained  title. 
Where  no  such  references  appear  and  the  deceased 
person  was  of  a  different  name  from  the  heir,  as  in 
case  of  a  descent  to  collateral  relatives  or  a  devise 
to  one  of  a  different  name,  it  may  become  quite  dif- 
ficult to  ascertain  from  whom  the  title  comes.  There 
is  a  case  on  record,  for  example,  where  the  last  known 
deed  was  in  1892,  made  by  one  of  several  heirs  of  a 
person  who  died  in  1785,  and  where  there  were  no 
references  or  deeds  on  record  during  all  that  period. 


12  MODERN  AMERICAN  LAW  LECTURE 

In  such  a  case  old  atlases  or  town  or  city  plans  or 
assessors'  records  can  be  resorted  to  and  will  usually 
disclose  the  name  of  the  former  owner.  Then  tb« 
examiner  should  go  into  the  Probate  Registry  and 
there  make  a  careful  abstract  of  all  papers  on  file  in 
that  estate.  As  a  matter  of  caution  the  docket  should 
also  be  examined  and  copied,  as  some  papers  may 
have  been  filed  and  lost  or  be  out  of  place.  Of  course 
the  important  things  to  note  in  relation  to  a  probate 
are  all  matters  giving  the  court  authority  to  deal 
with  the  title  to  the  real  estate.  It  should  first  be 
noted  that  the  court  had  jurisdiction  over  the  estate ; 
that  the  deceased  person  died  an  inhabitant  of  the 
county  which  issued  probate  and  the  petition  for  pro- 
bate should  be  abstracted  to  see  what  heirs  of  the 
deceased  person  are  named  in  the  petition  and  that 
the  usual  jurisdictional  facts  appear.  Where  there 
is  a  will,  the  will  should  be  abstracted  and  any  special 
clause  like  a  devise  or  a  power  of  sale  relating  to 
the  real  estate  should  be  carefully  copied.  The  inven- 
tory filed  by  the  executor  or  administrator  should 
also  be  examined,  as  it  may  be  important  to  show  that 
in  his  opinion  the  deceased  person  owned  the  prop- 
erty and  also  what  it  was  worth  at  the  time  of  his 
death.  The  proceedings  of  the  court  must  be  care- 
fully examined.  It  should  be  seen  that  the  heirs  or 
other  parties  interested  had  notice  of  the  proceedings 
for  probate  and  whether  they  appeared  or  not,  and 
that  if  the  petition  was  without  sureties,  that  publi- 
cation was  made  in  states  which  require  publication. 
After  appointment  the  affidavit  or  other  proceedings 
showing  notice  of  the  appointment  must  be  examined 


TITLE  TO  REAL  ESTATE  13 

and  the  examiner  must  satisfy  himself  that  all  proper 
proceedings  were  taken  to  bar  the  rights  of  creditors. 
He  should  also  examine  the  accounts  of  the  executor 
or  administrator  to  ascertain  whether  any  legacies 
provided  in  the  will  were  paid,  as  in  many  states 
legatees  have  a  lien  on  the  land  and  can  bring  suit 
even  a  long  time  after  probate.  Probate  proceedings 
must  all  be  considered  in  view  of  the  law  in  force  at 
the  date  of  the  death,  with  which  the  examiner  must 
familiarize  himself,  remembering  that  the  main  ques- 
tions are,  whether  the  Probate  Court  obtained  juris- 
diction and  had  power  to  take  what  action  it  did  over 
the  land  and  over  the  persons  who  had  rights  in  the 
land. 

The  persons  to  be  scheduled  after  a  probate  pro- 
ceeding will  depend  upon  the  form  of  the  probate, 
as  in  case  of  an  administration  the  heirs  must  be  run 
and  likewise  the  administrator,  if  he  obtains  author- 
ity to  sell  for  any  purpose.  If  there  is  a  will,  the 
devisees  of  the  land  should  be  scheduled  and  also 
trustees,  if  the  property  is  left  in  trust,  and  in  all 
cases  the  estate  of  the  deceased  person  himself  should 
be  scheduled  because  of  the  different  methods  of 
indexing  adopted  in  different  places. 

SCHEDULES 

A  schedule  is  a  copy  from  the  index  in  the  Registry 
of  Deeds  of  all  the  deeds  made  by  a  certain  person 
during  a  certain  time  in  the  case  of  a  grantor  index, 
or  those  made  to  a  person  in  a  certain  period  in  the 
case  of  the  grantee  index.  The  purpose  of  grantee 
schedules  is  to  find  a  starting  point  for  the  title,  while 


14  MODERN  AMERICAN  LAW  LECTURE 

the  grantor  schedules  have  to  be  made  and  then 
checked  from  the  time  each  owner  received  title  until 
he  parted  with  it  and  for  a  certain  time  afterwards 
sufficient  to  guard  against  tax  sales.  Schedules  are 
commonly  written  on  separate  sheets  of  paper  and 
will  show  simply  the  number  of  the  volume  of  the 
record  book  and  its  page  and  the  date  of  the  convey- 
ance and  a  statement  of  the  property  conveyed  when 
necessary.  It  is  customary  in  a  grantor's  schedule 
to  insert  the  names  of  the  grantees.  The  only  pur- 
pose of  the  schedule  is  as  a  check  to  enable  the  exam- 
iner to  assure  himself  that  he  has  examined  every 
instrument  that  can  possibly  bear  on  the  title. 

Where  the  examiner  finds  that  the  owner  is  a 
woman  who  has  been  subsequently  married,  both  the 
single  name  and  her  married  name  should  be  sched- 
uled, as  she  may  have  given  a  deed  before  her  mar- 
riage which  is  not  recorded  until  after  it.  Under  the 
law  in  some  states  where  the  husband  is  made  a  joint 
owner  with  the  wife  of  her  real  estate,  it  is  necessary 
also  to  schedule  the  name  of  the  husband  as  well  as 
that  of  the  wife  where  title  is  in  her  primarily.  It 
may  be  necessary  to  schedule  the  name  of  the  mort- 
gagee under  a  mortgage  to  find  out  whether  a  dis- 
charge was  ever  given  where  it  does  not  appear  by  a 
marginal  reference  on  the  mortgage. 

ABSTRACTS 

It  is  necessary  to  make  an  abstract  or  synopsis  of 
every  instrument  relating  to  the  property.  The  form 
of  the  abstract  is  important.  It  serves  two  purposes. 
In  the  first  place,  it  forms  the  basis  for  the  examiner's 


TITLE  TO  REAL  ESTATE  15 

study  when  he  finishes  collecting  his  material  to  ascer- 
tain by  an  examination  of  the  abstract  whether  the 
title  is  good  or  not.  In  the  second  place,  it  forms  a 
permanent  and  convenient  record  in  case  the  exam- 
iner may  later  be  consulted  in  regard  to  the  title. 
For  these  reasons  the  abstract  should  be  as  full  as 
may  be  necessary.  The  most  approved  system  is  to 
use  printed  blanks  with  a  separate  sheet  for  each 
instrument,  which  amounts  to  a  synopsis. 

Printed  forms  of  abstract  required  in  the  Land 
Court  in  Massachusetts,  for  example,  are  as  follows : 

DEED  BOOK    PAGE 

Grantor   

Consideration,  $ paid  by Dateinst. . . . 

Grantee Date  ack .... 

Habendum  to Date  rec .... 

Covenants    

Dower  and   

Signed  by  

Sealed  by 

Ack.  by before 

Description 

Sheet  No Title  No 

MORTGAGE  (Outstanding  or  Foreclosed)  BOOK    PAGE 

Grantor   

Consideration,  $ paid  by Date  inst. . . . 

Grantee Date  ack 

Habendum  to Date  rec .... 

Covenants    

Dower  and   

Signed  by  

Sealed  by 

Ack.  by before 

Marginal 
references 


16  MODERN  AMERICAN  LAW  LECTURE 

Description 

Provided 

Power  of  sale Where  ? , 

Notice 

Newspaper  published  in    

Grantee  may  purchase  ? 

Special  provisions  

Sheet  No Title  No 

MORTGAGE  (Discharged)  BOOK    PAGE 

Grantor   

Consideration,  $ paid  by Dateinst. . . . 

Grantee Date  ack. . . . 

Habendum  to Date  rec .... 

Covenants    

Amount   

Time  

Wife 

Marginal 
references 

Description 

Marginal  Record 

Sheet  No Title  No 

Whatever  system  the  examiner  uses,  he  should  be 
careful  to  adhere  to  that  system  carefully.  It  is  not 
well  to  have  the  printed  blank  too  full,  as  it  is  much 
easier  to  overlook  important  mistakes  or  omissions 
in  a  deed  when  the  matter  appears  in  the  printed 
blank  than  if  the  examiner  is  obliged  to  write  it  into 
the  blank  himself.  Many  examiners  dislike  printed 
blanks  altogether,  as  they  claim  there  is  a  tendency 
to  forget  to  note  differences  from  the  printed  matter 
and  to  exercise  care  in  comparing  the  printed  blank 
with  the  deed  in  question,  and  therefore  they  prefer 
to  abstract  each  deed  by  itself.  On  the  other  hand  the 
advantages  of  printed  blanks  are,  in  the  first  place, 


TITLE  TO  REAL  ESTATE  17 

uniformity;  in  the  second,  saving  of  time  and  con- 
venience in  sorting  the  blanks  when  filled  in..  A 
sample  of  an  abstract  not  made  on  a  printed  blank 
is  as  follows : 

1602.  302    William  Claflin    Newton  $1 

to 
Not  locus    Mary  E.  Clark    ux  Geo.  L.    Newton 

gv  gr  bar  sell  cy    A  ctn  pel  of  Id  with 
the  bldgs  thron  sit  in  Newton  bnd 

Begng  at  the  N.  "W.  corner  of  the  prems  to  be  cyd 
on  Otis  St  at  the  fence  by  Id  of  Eldredge  being  at 
N.  "W.  corner  of  lot  33  on  Blakes  plan  of  Id  of  James 
M.  Cook,  d  1847.  rec  3/44  th  the  line  E  on  Otis  St 
431  f  m  or  1.  to  the  end  of  the  pointed  wall  th  S 
in  a  straight  line  to  the  fence  by  the  wall  bndg 
Mrs.  Eldredge  and  my  land  th  N.  W.  by  sd  stone 
wall  and  by  the  rear  lines  of  lots  37  &  38  on  sd  plan 
to  Mrs.  Eldredge 's  land,  th  N  6  W  by  sd  Eldredge 
land  d,  being  W  boundary  line  of  lot  38  265  f  to 
pt  of  begng. 

Clark  to  pay  taxes  1882 

To  h  &  h        Mary  E.  Clark        H  &  a 

free  fuU 

D  &  H        Mary  B. 

Date  Apr.  1,  1882    William  Claflin    seal    Mary  B. 
Claflin    seal 

Ack  June  9,  1882    bef  Chas  A.  Drew  N.  P.     seal 
Eec.  June  10,  1882 

The  date  of  the  instrument  is  the  date  of  record, 
but  a  good  abstract  will  include  the  date  of  the  instru- 
ment, the  date  of  acknowledgment,  and  also  the  date 
of  record.  It  is  quite  common  to  put  the  date  of  rec- 
ord at  the  top  of  the  abstract  of  each  instrument  and 
a  capital  letter  in  the  margin  indicating  the  character 
of  the  instrument,  as  "M"  for  mortgage,  "W"  for 
warranty  deed,  "Q"  for  quitclaim  deed,  etc.  The 


18  MODERN  AMERICAN  LAW  LECTURE 

abstract  should  begin,  of  course,  with  the  full  names 
of  the  grantors.  It  should  include  the  consideration 
and  indicate  in  some  way  by  whom  the  consideration 
is  paid.  It  should  give  the  words  of  the  granting 
clause  fully  by  abbreviations,  using  a  different  abbre- 
viation for  the  word  "give"  from  that  used  for 
" grant,"  and  it  should  also  be  noted  whether  the 
words  "heirs  and  assigns"  are  used.  The  grantee's 
name  will  be  placed  commonly  at  the  head  of  the  in- 
strument and  therefore  need  not  be  repeated  here 
under  the  granting  clause.  The  description  of  the 
property  must  be  carefully  followed,  and  it  may  be 
well  to  begin  each  boundary  on  a  new  line,  and  in  case 
of  a  complicated  description,  to  make  a  small  sketch 
on  the  page  showing  the  description.  The  examiner 
should  be  careful  to  use  some  uniform  system  of  punc- 
tuating the  description.  All  distances  may  be  writ- 
ten out  in  figures  and  the  examiner  will  soon  learn 
to  use  common  abbreviations  which  will  save  much 
tune.  The  expression  "habendum  in  fee"  may  sig- 
nify a  complete  and  proper  habendum  clause  in  the 
deed,  including  heirs  and  assigns  in  the  case  of  an 
individual  grantee  and  successors  or  assigns  in  the 
case  of  a  corporation.  It  is  common  to  indicate  the 
warranty  in  a  deed  by  the  expression  "full  wty,"  and 
any  unusual  warranty  should  be  written  out  in  full. 
The  expression  "being  the  same  premises  conveyed 
by  deed  of"  can  be  abbreviated  by  using  the  equality 
sign,  and  a  reference  to  title,  as  "for  my  title  see  deed 
of ' '  will  appear  in  the  abstract  as ' '  ref .  deed, ' '  etc.  It 
is  unnecessary  usually  to  give  the  last  name  of  the 
wife  in  the  dower  clause,  which  might  well  read  as 


TITLE  TO  EEAL  ESTATE  19 

follows :  "ux  Grace  F.  rel.  d.  &  h."  It  must  be  noted 
whether  all  parties  to  the  deed  have  actually  signed 
it  and  whether  all  signatures  are  accompanied  with 
seals,  which  may  be  indicated  by  the  expression  "all 
s.  &  s,"  and  it  is  well  to  make  a  note  of  the  names  of 
the  witnesses,  if  any.  The  examiner  should  note  who 
acknowledges  a  deed  and  the  name  of  the  officer 
taking  the  acknowledgment.  The  examiner  should  see 
whether  the  deed  is  properly  executed  and  acknowl- 
edged in  accordance  with  the  law  in  force  at  the  time 
of  its  execution,  as  this  may  involve  the  question  of 
Federal  Revenue  stamps  under  the  Federal  law  of 
1898. 

All  deeds  must  show  that  the  owner  was  either  un- 
married at  the  time,  or  if  not,  proper  release  of  home- 
stead and  of  curtesy  in  the  case  of  a  husband  and 
dower  in  the  case  of  a  wife,  must  appear  on  the  deed. 
Where  the  deed  does  not  show  whether  the  owner  was 
married  or  not,  it  may  be  necessary  for  the  examiner 
to  fortify  the  title  by  affidavits  of  persons  who  know 
the  facts  that  the  owner  was  unmarried  at  the  time  the 
deed  was  given.  A  mortgage  is  abstracted  like  a  deed 
except  that  great  care  should  be  taken  in  noting  the 
terms  of  the  power  of  sale  and  other  requisites  to  a 
good  foreclosure  stated  in  the  mortgage.  Any  assign- 
ment, extension,  or  foreclosure  of  a  mortgage  will  be 
carefully  abstracted  in  the  same  way. 

There  are  various  methods  of  arranging  the  ab- 
stracts on  completion  of  the  work.  Some  conveyan- 
cers put  them  in  chronological  order  regardless  of  the 
portion  of  the  laws  to  which  they  refer,  but  probably 
a  better  way  where  the  land  comes  from  different 


20  MODERN  AMERICAN  LAW  LECTURE 

sources  is  to  arrange  the  abstracts  for  each  portion 
of  the  laws  in  chronological  order. 

STARTING  POINT 

Conveyancers  all  have  their  own  methods  of  ab- 
stracting deeds  and  finding  the  starting  point.  Some, 
for  example,  will  run  a  title  back  in  the  grantee  in- 
dexes as  far  as  necessary  before  making  any  abstract, 
but  we  believe  it  is  on  the  whole  easier  to  make  ab- 
stracts of  every  deed  that  clearly  relates  to  the  title 
while  searching  for  the  starting  point.  In  this  way 
the  examiner  becomes  familiar  with  the  title  as  he 
goes  along  and  is  enabled  to  avoid,  if  his  work  is  care- 
ful, looking  at  a  deed  more  than  once.  The  starting 
point  of  the  title  may  well  depend  on  the  instructions 
given  the  examiner.  He  may  be  told  that  the  title  has 
previously  been  examined  and  found  to  be  good  down 
to  a  certain  date,  and  that  he  is  expected  only  to  exam- 
ine it  from  that  date,  in  which  case  he  will  have  no 
use  for  the  grantees'  indexes  if  he  knows  the  owner 
on  the  date  given,  but  will  simply  run  the  title  down 
in  the  grantors'  indexes.  If  he  has  no  special  instruc- 
tions, the  examiner  will  find  it  safe  as  a  practical  mat- 
ter to  run  the  title  back  about  sixty  years,  unless  some 
unexpected  difficulty  is  developed,  when  he  may  have 
to  search  further.  This,  of  course,  will  depend  to 
some  extent  upon  the  importance  of  the  transaction, 
as  parties  are  frequently  not  willing  to  pay  in  a  small 
transaction  for  a  complete  examination. 

LIENS 

In  case  of  attachments  it  is  not  customary  to  ex- 
amine the  original  process  filed  by  the  officer  with  the 


TITLE  TO  REAL  ESTATE  21 

Register,  but  it  will  be  enough  to  consult  the  attach- 
ment index,  which  usually  gives  enough  information. 
Attachments  should  be  examined  for  a  period  of  at 
least  twenty  years  back  from.'  the  date  of  the  examina- 
tion, running  each  owner,  of  course,  during  the  period 
of  his  ownership,  as  cases  sometimes  lie  for  many 
years  in  the  courts  without  action.  Attachments  are 
indexed  under  the  name  of  the  defendant  in  the  suit 
brought.  Where  the  attachment  has  been  dissolved 
by  bond,  it  will  be  enough  for  the  examiner  to  find  a 
note  of  such  dissolution  on  the  attachment  index.  The 
attachment  may  never  have  been  discharged  on  the 
record  in  the  Registry  of  Deeds  but  may  have  lapsed 
by  operation  of  law,  as  where  the  plaintiff  in  the  suit 
has  been  defeated  or  the  suit  was  not  entered  in  court 
within  the  proper  time,  or  it  has  been  dismissed  or 
other  disposition  made  of  it,  and  the  examiner  will 
then  be  obliged  to  look  at  the  original  records  and  sat- 
isfy himself  that  the  lien  of  the  attachment  is  no 
longer  outstanding. 

Mechanics'  liens  must  be  carefully  guarded  against, 
as  in  some  states  it  is  not  essential  to  their  validity 
that  the  name  of  the  true  owner  is  correctly  stated. 
It  is  practically  impossible  positively  to  guard  against 
such  liens  through  an  examination  of  the  record,  but 
a  little  investigation  of  the  history  of  the  property 
and  condition  of  the  premises  will  show  whether  such 
a  lien  is  likely  to  be  outstanding. 

In  all  probate  cases  special  attention  must  be  given 
to  the  inheritance  tax  laws,  as  such  laws  in  practically 
all  our  states  provide  for  a  lien  on  real  estate  and  the 
examiner  must  see  that  the  tax  was  paid  or  that  the 


22  MODERN  AMERICAN  LAW  LECTURE 

lien  was  released  by  the  officer  duly  authorized.  The 
Federal  Legacy  Tax  of  1899  was  not  a  lien  on  real 
estate,  but  certain  internal  revenue  taxes,  as  those  ap- 
plying to  brewers,  distillers,  and  certain  dealers  in 
liquor  and  tobacco  and  certain  others  specially  taxed 
like  bankers,  brokers,  and  proprietors  of  theatres, 
give  a  lien.  To  guard  against  these  internal  revenue 
liens  when  the  property  has  been  used  for  any  one  of 
the  purposes  taxed,  the  examiner  should  ascertain 
from  the  Federal  officials  whether  the  tax  has  been 
paid. 

EXECUTION,  TAX  AND  FORECLOSURE  SALES 

In  case  of  a  sale  under  execution  the  examiner 
should  look  at  the  original  papers  and  satisfy  himself 
that  the  court  had  jurisdiction  of  the  parties  and  the 
subject  matter  of  the  proceeding  and  see  that  proper 
proceedings  were  taken  to  enable  the  court  to  enter 
judgment  according  to  law.  The  proceedings  on  exe- 
cution are  strictly  construed  and  the  examiner  should 
note  that  action  was  taken  to  enforce  the  execution 
within  the  time  limited  by  law  and  that  the  proceed- 
ings of  the  officer  as  appear  in  the  original  papers 
and  also  in  his  deed  were  in  accordance  with  the  law 
enabling  him  to  sell. 

No  instruments  should  be  more  minutely  examined 
than  tax  deeds,  as  they  are  strictly  construed.  In 
Massachusetts,  for  example,  there  are  over  one  hun- 
dred known  reasons  why  a  tax  sale  might  be  invalid 
and  no  titles  under  tax  deeds  can  be  registered  until 
all  the  preliminaries  of  assessing  the  tax  from  the 
time  the  warrant  for  the  raising  of  money  from  the 
proper  city  officer  is  received  by  the  assessors  down 


TITLE  TO  REAL  ESTATE  23 

through  the  assessment  of  the  tax,  the  publication  of 
notice  of  sale  and  the  sale  and  the  giving  of  the  deed 
are  complied  with.  Certificates  of  the  proper  officers 
must  be  obtained  to  show  that  every  person  who  took 
any  part  in  the  proceedings  was  properly  appointed 
or  elected  and  duly  authorized  to  do  so. 

The  law  so  varies  in  the  different  states  that  no 
exact  rule  can  be  laid  down,  but  it  is  enough  to  say 
that  every  step  in  the  proceedings  for  assessing  and 
collecting  taxes  must  be  verified  before  a  tax  deed  can 
be  safely  passed  as  conferring  title.  One  effect  of  the 
possibility  of  a  tax  sale  is  that  all  owners  should  be 
scheduled  in  the  grantor  index  for  the  period  after 
they  have  ceased  to  own  the  property  within  which 
the  authorities  have  the  right  to  sell  the  property  for 
non-payment  of  taxes. 

Another  proceeding  with  which  extreme  care  must 
be  used  is  the  foreclosure  of  a  mortgage.  Where  the 
foreclosure  was  under  power  of  sale  in  the  mortgage, 
special  attention  must  be  paid  not  only  to  the  statutory 
requirements  at  the  time,  but  also  to  the  provisions  of 
the  power  in  the  particular  mortgage,  and  proper  evi- 
dence by  affidavit  or  otherwise  should  appear  in  the 
records  showing  that  due  notice  of  the  sale,  including 
its  time  and  place,  was  given.  In  case  of  foreclosure 
by  equitable  proceedings,  it  must  appear  that  the 
court  acquired  jurisdiction  of  the  parties  and  subject 
matter  and  acted  in  accordance  with  law. 

BANKRUPTCY  OR  INSOLVENCY 

The  name  of  every  owner  in  the  chain  of  title 
should  be  examined  in  the  Insolvency  records  of  the 


24  MODERN  AMERICAN  LAW  LECTURE 

county  where  the  owner  appeared  to  live  for  the 
period  when  the  National  Bankruptcy  Act  has  not 
been  in  force.  It  is,  of  course,  not  theoretically  safe 
to  stop  here,  as  the  owner  may  have  gone  into  in- 
solvency in  another  county  in  the  state  or  even  in 
another  state,  but  practically  speaking,  it  is  all  that  is 
customary.  The  owners,  during  the  period  while  the 
National  Bankruptcy  Act  was  in  force,  should  also  be 
examined  in  the  Bankruptcy  Court  for  the  district 
where  they  appeared  to  live  at  the  time,  and  that  is 
practically  all  that  the  examiner  does,  although  this  is 
not  absolutely  safe  for  the  same  reason  that  the  ex- 
amination of  the  insolvency  schedule  is  not  theoretic- 
ally sufficient. 

The  examination  should  include  the  names  of  mort- 
gagees during  the  period  to  be  sure  that  they  have 
authority  to  discharge  or  release. 

GOVERNMENTAL  TAKINGS  OR  REGULATIONS 

Road  locations  must  usually  be  filed  in  the  Registry 
of  Deeds,  and  where  this  is  not  the  law  the  examiner 
must  go  to  the  records  of  the  proper  officials  and  see 
whether  any  town  ways,  city  streets,  county  ways  or 
state  highways  have  been  laid  out  over  any  part  of 
the  locus.  In  states  where  a  Board  of  Survey  has  a 
right  to  make  street  plans  which  restrict  building  on 
the  property,  their  records  must  be  carefully  exam- 
ined. The  city  or  town  authorities  must  be  questioned 
as  to  the  existence  of  any  special  assessments  like 
street  or  sidewalk  assessments,  or  sewer  or  water 
assessments,  and  in  some  states  the  statute  provides 
that  these  officials  shall  issue  certificates  of  the  exist- 


TITLE  TO  REAL  ESTATE  25 

ence  of  such  assessments.  The  examiner  always  runs 
the  chance  that  an  order  for  such  improvement  giving 
a  lien  may  be  passed  by  the  local  authorities  after  he 
has  made  his  inquiry  and  before  finally  passing  title, 
so  this  inquiry  should  be  made  as  late  as  possible.  At 
the  same  time,  where  there  is  any  building  on  the 
premises,  he  should  see  that  the  building  constitutes 
no  violation  of  the  existing  local  building  laws. 
Under  the  laws  in  states  where  there  is  a  Harbor  and 
Land  Commission  or  some  similar  board,  the  exam- 
iner should  search  in  the  offices  of  that  board  for  any 
regulations  or  takings  of  the  Board  affecting  the 
locus  if  it  is  wharf  or  shore  property. 

SUMMARY    . 

When  the  examiner  has  run  the  title  back  in  the 
grantee  indexes  to  his  starting  point  and  has  run  it 
down  in  the  grantor  indexes  and  completed  his  sched- 
ules and  made  an  abstract  of  the  instruments  which 
appear  to  affect  the  title,  he  will  then  find  it  conveni- 
ent to  make  a  summary  of  the  title,  giving  a  chrono- 
logical list  of  all  persons  who  have  been  interested  in 
the  property  during  the  period  of  their  actual  own- 
ership. With  this  information  he  should  then  make 
a  careful  search  for  all  possible  liens  in  the  way  of 
attachments  or  governmental  charges  against  the 
property. 

When  the  examiner  has  entirely  completed  his 
search,  he  should  carefully  study  his  material  and 
note  on  every  sheet  in  red  ink  such  defects  or  other 
matters  as  require  special  attention.  It  is  a  good 
practice  even  during  examination  to  make  a  cross  or 


26  MODERN  AMERICAN  LAW  LECTURE 

other  mark  opposite  such  matters  as  are  noticed  at 
the  time  of  collecting  the  material.  He  should  com- 
pare the  descriptions  in  the  various  deeds  with  each 
other  and  with  the  plans  and  see  that  the  description 
by  courses  and  distances  makes  a  complete  enclosed 
space.  In  case  the  property  is  part  of  a  larger  tract, 
he  should  note  that  portions  of  it  have  not  been  acci- 
dentally included  in  deeds  of  adjoining  property.  He 
should  then  make  a  summary  showing  the  apparent 
record  owner  and  indicating  all  possible  defects  down 
to  the  taxes  for  the  current  year.  The  date  of  the 
summary  should  be,  of  course,  the  date  of  the  begin- 
ning of  the  abstract  and  not  of  its  close,  as  instru- 
ments may  have  been  recorded  or  orders  affecting 
the  land  passed  by  local  authorities  in  the  meantime. 
A  sample  of  such  a  summary  is  as  follows : 

Oct  18  1911     Title  in  Giaeomo  de  Luco 

Subj  to  mtg  3483.261  to  H.  Wilson  Ross 

$700    page  396 

Subj  to  rts  of  drainage  in  deed  1731.363. page  393 

Subj  to  restns  in  deed  2796.422 page  395 

No  attach 

No  insolv    x  as  noted 

No  tax  sales. 

REPORT  TO  CLIENTS 

The  examiner  is  personally  responsible  to  his  client 
for  any  errors  or  omissions  or  negligence  in  his  work, 
it  being  a  settled  principle  of  law  that  one  who  holds 
himself  out  as  being  competent  to  examine  a  title 
should  be  equipped  for  the  work.  His  report  to  his 
client  should  therefore  be  as  guarded  as  possible.  He 


TITLE  TO  REAL  ESTATE  27 

should  avoid  at  all  hazards  making  any  warranty  of 
the  condition  of  the  title,  as  we  have  seen  how  many 
things  may  affect  it  which  do  not  appear  of  record. 
A  good  form  is  to  say  that  he  has  examined  the  rec- 
ords in  the  Registry  of  Deeds  and  any  other  offices 
which  he  has  searched  through  a  certain  period  and 
has  found  there  nothing  to  militate  against  the  title 
except  as  stated.  He  should  then  state  in  short  form 
the  name  of  the  present  owner  and  give  a  list  of  all 
incumbrances,  restrictions  or  other  matters  of  inter- 
est affecting  the  value  of  the  property  and  the  state 

of  the  title  outstanding. 

« 

PASSING  PAPERS 

It  is  not  safe  to  pass  papers  anywhere  except  at 
the  Registry,  and  immediately  before  the  deeds  are 
delivered  the  examiner  should  go  to  the  office  of  the 
Register  and  run  down  his  records  for  all  late  deeds 
which  may  not  have  been  recorded  or  which  may  pos- 
sibly have  been  recorded  since  his  examination.  He 
should  also  examine  the  records  in  the  Bankruptcy 
Court  immediately  before  passing  papers  and  get  a 
report  from  the  city  authorities  as  late  as  possible  as 
to  any  possible  lien  from  special  assessments.  When 
dower  or  curtesy  must  be  released,  it  is  better  as  a 
matter  of  safety  to  have  the  husband  or  wife  actually 
present  and  sign  at  the  time.  The  examiner  will  also 
be  expected  to  see  that  the  taxes  are  paid  and  that  the 
insurance  policies  are  properly  transferred  and 
proper  allowances  made.  The  grantor  is  expected  to 
pay  for  the  recording  of  all  papers  which  clear  his 
title,  like  discharges  of  any  mortgages  or  other  liens 


28  MODERN  AMERICAN  LAW  LECTURE 

against  the  property,  while  the  grantee  is  expected  to 
pay  for  the  recording  of  the  deed  itself. 

SOME  OF  THE  DANGERS  IN  EXAMINATION  OF  TITLE 

The  careful  and  conscientious  examiner,  after  he 
completes  his  examination,  will  bear  in  mind  that  the 
record  often  gives  an  incomplete  list  of  the  difficulties 
against  the  title.  Deeds  recorded  may  have  been 
forged ;  may  have  been  signed  by  infants  or  lunatics ; 
the  affidavits  giving  lists  of  heirs  in  probate  proceed- 
ings may  be  erroneous,  and  frequently  are ;  the  court 
may  never  have  acquired  jurisdiction  over  the  de- 
ceased person  as  he  may  have  been  domiciled  in  some 
other  jurisdiction ;  a  grantor  may  really  be  married 
and  claim  to  be  unmarried ;  or  a  good  record  title  may 
be  bad  on  account  of  disseisin  or  adverse  possession, 
or  an  easement  by  prescription.  There  has  been  pub- 
lished, for  example,  a  fanciful  sketch  of  a  title  in  the 
possession  of  an  owner  for  thirty  years  under  a  spe- 
cific devise  in  a  will  duly  probated.  The  devisee,  how- 
ever, was  an  heir  and  was  ousted  by  legatees  under 
the  will  who  had  never  been  paid,  and  as  he  was  an 
heir,  he  took  by  descent  instead  of  by  purchase.  Fur- 
ther examination  back  some  hundred  years  dispos- 
sessed the  legatees  on  the  ground  that  the  estate  of 
the  deceased  person  was  an  estate  tail  which  had  re- 
cently terminated.  It  then  appeared  that  the  grantor 
of  the  deceased  person  had  been  really  disseised  and 
the  Statute  of  Limitations  had  not  run  as  the  heirs 
of  the  disseisor  since  had  been  either  infants  or  non 
compos  or  out  of  the  jurisdiction,  and  so  the  property 
again  changed  ownership  as  the  result  of  litigation. 


TITLE  TO  EEAL  ESTATE  29 

Finally  the  original  devisee  got  the  property  back  on 
the  ground  that  he  was  an  heir  of  an  owner  some  two 
hundred  years  before,  who  had  given  a  deed  with  a 
condition  that  the  property  should  revert  if  any  build- 
ing was  built  upon  a  certain  portion  of  it,  and  a  recent 
erection  worked  a  forfeiture  to  the  heirs  of  this  early 
owner.  As  the  erection  was  recent,  the  Statute  of 
Limitations  had  not  run  and  he  fortunately  recovered 
back  his  property.  This  simply  illustrates  some  of 
the  dangers  attending  a  title  to  real  estate.  We  can 
only  close  our  sketch  as  we  began  it,  by  suggesting 
that  the  two  main  safeguards  in  the  examination  of 
titles  are  the  care  of  the  examiner  and  the  general 
principle  that  as  titles  are  examined  at  every  trans- 
fer, there  is  a  presumption  of  honesty  and  care  in  the 
work  done  by  our  predecessors,  which  presumption  is, 
after  all,  our  main  reliance. 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 

This  book  is  DUE  on  the  last  date  stamped  below. 


ocr  2 


3  1973 


Form  L9-Series  4939 


GAYLAMOUNT® 
[PAMPHLET  BINDER 
Syracuse,  N.Y. 
Stockton,  Calif. 


